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Us 5, Studley 2, Subsection 2, Hur 1, Mr. Pillha 1, Dale Pillpa 1, Renee 1, David Pillpa 1, Liu 1, Mr. Pillpais 1, Stricken 1, Sheffield 1, San Francisco 1, Petitioner 1, Renne 1,
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  SFGTV    [untitled]  

    November 26, 2012
    5:30 - 6:00pm PST  

[ gavel ] >> good evening and welcome to
the regular meeting of the san francisco ethics commission and we'll begin by taking roll. commissioner studley? >> here. >> commissioner liu? >> commissioner renee? >> present. all members of the commission being present, let's start with the agenda. public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the ethics commission. :good evening dale pillpa, just wanted to comment and perhaps inquire on the election season
that has just concluded. i assume that the staff will be analyzing the effectiveness of the matching -- the public finance program and perhaps compiling a report and i'm just wondering what the thinking is on the timing for that? it's usually a few months down the road, but given the various things that happened this cycle, i believe it will be interesting to look at the numbers after the fact and maybe we can have some discussion at that time about the program and how it works given what we anticipated about a year-ago going into this cycle. i don't know if staff has an indication of when that mike be happening. >> a few months. >> thanks. next item on the agenda is discussion and possible action
on the amendments to the ordinance. >> nobody is a stranger to the subject matter in front of us. the commission made some progress and combing through input from the sunshine ordinance task force and the staff's updated and redirected recommendations and then once again, after the last time the commission discussed this, staff has put together sort of a chronology of what has happened so far, and tried to distill all of the direction from the commission into a set of decision points to help us to finish this. and then move to getting the
dregs into effect. there are eight decision points in front of you to go through the last few more housekeeping than anything else. but we're ready to answer any questions the commission has as they go through these. >> my thought was to begin by taking one decision point at a time. there may be somewhere we can consolidate, like mr. st. croix was saying towards the end and we will do so, if possible. i second mr. st. croix's statements about this process. it has been a long process, but i think a good one, where we have gotten a lot of people weighing in. i think the commission has heard those voices and tried to incorporate all of those points that we think make sense and that will help facilitate the
process we are intending to embark upon with respect to these sunshine ordinance complaints. the first decision point is regarding the definitions in the regulations. did anybody have any comment about those? decision point 1, chapter 1 of the proposed regulations? i had one question about the use of order of determination. i probably just missed it, but where do we use that term?
>> chair hur? >> yes. >> i don't believe it's used in the regs. i think it's just kind of to identify what would be a referral coming from the task force. >> okay. would it be -- i mean we do refer to "referral" quite often. i guess i'm just wondering whether we should have it, if we don't use it or if we have it, do we want to use it in any place that would add
clarification? >> the order of determination is usually something that accompanies the referral from the task force. it's usually their initial finding that a violation happened. so i think staff was just trying to -- because this are the two-track process. one that would have a willful aspect to it and one that wouldn't and they are handled very differently. they are basically setting out there is an order of determination and when we get it, this is what the commission will treat it as. that is all. >> the actual document is called that we would receive? >> correct. >> why do they have an order of determination with respect to willful violations by elected officials or departments? >> the task force will find that and refer that determination to us. >> those are the ones that we'll be looking at? >> correct. >>
any other questions with respect to incidence point 1? public comment? >> a member of sunshine task force. i don't if you have received, but one the concerns that we had at the last task force meeting that the task force has five good members. there has been a good-sized turnover on the task force and those members are undergoing a learning curve about this and numerous other issues. we have been at this since april of 2009. that is an awfully long time
and the commission at the staff and commission level has exercised a great deal of indulgence and patience for which, you know, we're deeply grateful. at the same time, although i am here not in any authorization from the task force, but i think i do reflect a consensus of the task force when i ask that any final decisions on the regulations be put off further and again, i know this is has dragged on seemingly indeterminable, but the consensus on the task force is that we would like to have some
time, a month, maybe two months for members of task force to familiarize themselves with this particular issue and then we could move forward from there . >> also a member of task force, but speaks as an individual. i will save my global comments to the end when we consider the alternative decision of whether to adopt it at this time. with respect to the definitions, i wanted to call attention on page 3 of the overall draft. item q referral and this came up in the last discussion. the supervisor of records under the ordinance only has the limited power to review whether a record is public and if so, to order the disclosure of the record. the supervisor of records does not have any power under the
ordinance to make a referral to this commission or to any other body with respect to such as a determination. i understand the chair's concern at the last meeting was in the event that it occurred that a referral from the supervisor of records would be handled in the same manners a referral from the task force. i just think that it is so unlikely, because it is not provided for in the ordinance. that you should strike "or supervisor of record," from the definition of referral and the referral would only mean a document from the task force to the commission finding a violation of the ordinance. >> mr. pillha your point being that the supervisor of records cannot make a referral? >> under the ordinance, correct, the supervisor of the errors does not have the power
to make a referral in the same manner as the task force. >> in the same manner of the task force? >> the task force has the specific power to do so. the supervisor of record does not. the supervisor of records is only a place where a petitioner may seek review of an agency determination not to release a record. there is a two-track process. you can go to the task force, to the supervisor of record or both, but only the task force has the power to refer under 67.30. >> mr. sheffield? >> mr. pillpais correct there is no specific provision. however, i believe through the conversations that we have had, one concern was say the supervisor of records makes a determination that they believe there was a willful violation.
it would not necessarily prohibit them from bringing it forward to hear. it was a cover all basis kind of thing so we didn't preclude something that may have come from a different body. it certainly could be stricken, but in event it may happen that way, although it hasn't ever, the commission didn't want to foreclose on that option. >> would the question then be whether the definition referral presumes a particular handling and whether something sent to us, let's not use the technical term "referred" but sent to us from the superintendent, but handled in the same was from the task force? are they the same basket of definition? >> right now they are? >> the supervisor the records makes the same types of
determinations that the task force would. if they were to find that there was was a non-willful violation that a record was public and should have been produced, but it wasn't, they are supposed to send that to the attorney general or the district attorney, just as the task force is supposed to. the task force gets an extra step under 67.35b, but believe that the commission looked at that pro[stro-eugs/] apply broadly to anyone. so the supervisor of records might also say here, we also find this, you know? they are not mandated to, but they certainly might. and the last conversation that the commission had, i believe it was sort of leaving the door open for that. if we did get a referral from the body, we would not just say we could not do anything. >> if i could just clarify. my reading and understanding of the ordinance is perhaps a little different that the supervisor of records only
makes a determination whether a record is public or not, not whether the conduct of any individual was in violation or to the extent it was in violation, whether it was willful, only whether the record is public and if so, to order that the record be disclosed. the last conversation i had with the individual who currently serves as supervisor of records indicated that that person has never and never intends to make a referral to the commission believing that it's not within that person's power to do so. just to make the determination of whether a record is public. and just really following very closely to what the powers and duties are of the supervisor of records, which is really extremely limited under the ordinance. i don't want to belabor the point anymore. if you want to leave it, leave it. i would like to see it stricken. >> thank you.
>> any further questions or comments on the definitions? was there anything else you wanted to weigh in on? to me i'm fine with leaving supervisor of records there. i think -- i understand how people could read the provisions differently, but i support this particular definition. is there a motion to adopt chapter 1 of the proposed regulation as reflected? >> so moved. >> second. >> all in favor? >> aye. >> opposed? hearing none, motion passes. chapter 2 is referrals to the
ethics commission. are there any questions or comments from the commissioners regarding chapter 2? >> the only comment i had and it's not very serious, but under "d" whether 2 and 3 should be reversed? 3 sort of sets out what is to be determined and then 2 is a vote. it just seems to me that the determination come before the vote. i don't feel strongly about it.
>> i think that is a good point. >> yes. >> and i also have a question on that same paragraph, paragraph 2 under section d. so it refers to findings of facts and conclusions of law. and so i was just wondering what was exactly contemplated by that? is that something written or just orally? when the vote is taken? it's sort of a companion question to commissioner renne's point and then i see later in section e, under "orders," it says, "the commission will instruct staff to prepare written order reflecting the commission's findings." so then i was wondering if what was contemplated was the findings of fact and conclusions of law to be incorporated in that order, which we would instruct, based on our vote and finding,
verbally. or is there a more extensive process that is contemplated with respect to preparing findings of fact and conclusions of law? >> i think they just contemplated the commission doing it during the hearing. >> okay. >> that was my understanding as well and certainly if it was a complicated issue where we wanted to make written findings and that the summary order was more involved, i think we could do more. but i think the idea is that we can hopefully make them orally to get to resolution quickly. >> yes, that sounds good. >> and in that regard though, when you go to f, the public announcements. why is it that the public announcement doesn't need to
include written finding of fact and conclusions of law? >> i think that was just to give flexibility. i mean one thing we're trying to figure out is what form the announcement will take. i mean if you were just doing a press release, i don't know that we want to be required to, if it were a five-page order to release the whole thing with the public disclosure. if it made sense to do so, i think we would. but with that said, i don't feel strongly if people want to release the whole order. that is fine with me, but the order will be publicly available. i think the only question is in a press release or on a list, is it it helpful to the public to have all of the detail rather than just the headline? commissioner studley? >> it may be a technical
regulator's question, but unless we need to give ourselves the authority by saying that we may include findings of law and conclusions of fact, is that sentence even necessary, sense without it -- i agree that we should commit ourselves or require ourselves to make a public announcements because these are important. but i wonder whether we need that sentence at all to say that we may, but need not include findings of fact. >> i think it's a good point. >> does it answer a particular question? >> i think it's a good point. we have had had occasions where members of the public have asked for things to be in a certain format and sort of repeatedly demanded that they be in a certain format and when we're ambiguous or when we're
silent, then it leads to confusion. >> so the emphasis that i think i hear in your comment is that we need not include the findings of law and fact in this document is the permission not to do it, not the fact that we may do so when we want to? it might be very cumbersome and they will be publicly available in other ways? >> so me that is the benefit of the language. >> okay. thanks. >> any other questions or comments from the commissioners on chapter 2? i had a question about c2. we don't permit -- it doesn't appear that we permit email
exchange there, like we do in the corresponding section for willful violations of department heads. although perhaps i -- covered in chapter didn't we have
something in 3 that it could be sent by email? >> yes the last sentence of d2 on page 10. >> is there a reason we didn't include that? okay. having gone through the process we went through this summer, i found email service to be incredibly helpful and would encourage it. and so, if we're going to include it in chapter 3, i would include it in chapter 2 as well.
public comment on chapter 2? >> for the record knee, first of all in the question of the press releases including entire texts of orders of determination in electronic releases there is no reason not to provide an electronic link to the orders. presumably they are drafted on computers and microsoft or some other program. so the electronic aspect of it is already there and with the text, there is no reason not to provide that link. a couple
other things. in decision points 2-chapter 2, ii, section d for david, subsection 2. that and chapter 3, iii, section b, subsection 2 differ in setting the majority threshold. majority vote threshold to determine whether a respondent violated the sunshine ordinance. 2, ii d2 states three votes would be required to declare that the respondent did not violate the ordinance. 3, iii b declares three votes are required to declare that the respondent did violate the ordinance. consistency this language is
really always the better option. in decision point 2, ii e, and 3 iii c they do not address what would happen if a respondent failed to comply with an order from the commission or if the respondent's employing entity refused to pay a commission-imposed fine and, by the way,, i will add that i do not believe in fining a respondent's employing entity a good idea. if there is a fine, it should go to the respondent. >> david pillpa, again. to the extent it makes sense i think chapters and 3 should have parallel language where there are differences in burdens and what not, and they should be different, but otherwise i agree and feel strongly that they should have
exactly the same language covering how things work. i also was going to point out the 3-commissioner vote, but actually from a different perspective. in the event that a commissioner is absent, and the commission were to deadlock 2-2. it's not clear what happens then. if a matter would be continued? it it would be -- if there is some presumption under chapter 2 that there was a violation or under chapter 3 that there wasn't or just what would happen? i understand that it requires a majority vote of the body to make a substantive action. i'm not questioning matters that are seeking to do anything different, but just to clarify what would happen in other sorts of events? i have no quarrel with not including the findings in a public announcement. i do agree to the extent that they exist as a written document they should be
referred to or linked. and again, the public announcement section 2f is not exactly the same as 3d at the end. so just trying to create some parallelism there. i am also a little unclear and perhaps, we could have some discussion on the item that is left in the order a to cease and de desist and/or produce the record. i'm still struggling in my head to find where the commission would actually have the power under the charter or the ordinance to so order. i get you that make a finding and post it on the website and send it to whoever you want, send warning letters and all of .